Privacy and the Right to Record

Kaminski, Margot E., Boston University Law Review

Introduction

Many laws in the United States protect privacy by governing recording. Wiretap and eavesdropping laws, video voyeurism laws, and a host of new privacy laws all target the moment at which a recording is made or information is gathered. Recent cases, however, have recognized a First Amendment "right to record."1 While commentators have argued for the existence of this First Amendment right, none have analyzed, at any length, its implications for privacy laws.2

Privacy governance has always been in tension with the First Amendment.3 Usually, however, that tension has played out around the distribution of information, not recording or information gathering. Until recently, governing recording was, in fact, the simplest way to protect privacy in the United States without triggering First Amendment scrutiny.

Governing the distribution of information interferes with a publisher's editorial choices and often requires assessing a reader's reaction to speech.4 The Supreme Court suggested in Bartnicki v. Vopper5 that privacy governance should be aimed at recording, not distribution.6 Where telling a publisher or speaker to retract lawfully obtained, truthful information implicates the First Amendment, under Bartnicki, the government can make it unlawful to obtain information in the first instance, without necessarily invoking First Amendment scrutiny. The right to record threatens this governance model. The moment of recording is no longer a First Amendment-free zone.

Courts appear conscious of the deregulatory power of a recording right and have sought limiting principles. Courts have cabined the scope of the right to record based on both content and physical location.7 Courts have also proposed treating the right to record as though it were expressive activity in a physical space, like a parade.8 This treatment would allow courts to balance privacy against speech when evaluating recording, rather than strike down most recording laws under strict scrutiny.

Both current and proposed judicial treatment leads, however, to challenging questions. First, why is it that the scope of the right to record might differ in different physical spaces, as courts currently suggest? Second, if recording is expressive, how does one disentangle a legitimate government interest in protecting privacy from an impermissible government interest in restricting speech?

My central claim is that the contours of the protected right to record are defined by the privacy harms that the right potentially causes. Understanding the right to record is possible only by properly articulating the privacy interests at stake. This claim stands even as the Supreme Court in recent cases has repeatedly disavowed balancing speech against other nonspeech harms.9

To understand the right to record, then, we must understand the privacy harm. Privacy can be many things.10 Recording implicates a particular type of privacy interest that is entwined with physical space.11 Laws that govern recording enable individuals to dynamically manage their social accessibility in physical space and over time.12 In order to manage their social accessibility, people rely on a variety of tactics and circumstances, including: physical walls; clothing; others' forgetfulness over time; and physical distance. When the use of a technology disrupts any of these tactics and circumstances, the government may have an interest in intervening to prevent undesirable changes in behavior, including chilling effects on speech.

Understanding privacy as involving both physical and temporal features of an individual's environment helps answer the two most difficult questions about the right to record. First, the scope of the right to record is treated differently in different physical spaces because the strength of the privacy interest varies in different physical locations. Courts consequently set doctrinal defaults that favor privacy in private locations and speech in public locations (not that private and public are perfectly distinct, but that is the shorthand used in the doctrine here). …

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